HomeMy Public PortalAbout13 8.K. First Amendment to the Digital Billboard Advertising Amortization Agreement with TC Gateway LLCDATE:
TO:
FROM:
MANAGEMENT SERVICES DEPARTMENT
MEMORANDUM
December 3, 2013
Honorable Mayor and City Council
Jose E. Pulido, City Manager
By: Eric Vail, City Attorney
Brian Haworth, Assistant to the City Manager
AGENDA
ITEM 8.K.
SUBJECT: FIRST AMENDMENT TO THE DIGITAL BILLBOARD ADVERTISING
AND AMORTIZATION AGREEMENT BETWEEN THE CITY OF TEMPLE
CITY AND TEMPLE CITY GATEWAY LLC
RECOMMENDATION:
The City Council is requested to:
a) Review and approve the First Amendment to the Digital Billboard Advertising and
Amortization Agreement between the City and Temple City Gateway LLC; and
b) Authorize the City Manager to execute said Amendment with Temple City Gateway
LLC .
BACKGROUND:
1. On February 15, 2011, the City Council (Council) adopted Ordinance No. 11-941
allowing non -conforming billboards to convert to digital billboards, subject to
approval by a conditional use permit (CUP). The Ord inance also requires the
billboard owner to enter into an amortization agreement with the City, identifying
recoupment of the investment and a date for billboard removal.
2. On September 13, 2011, the Planning Commission approved a CUP for the
upgrade of a legal non-conforming advertising structure at 5402 Rosemead Blvd.
to a dual-sided digital billboard. Conditions of approval required the billboard owner
(i.e., Temple City Gateway LLC, formerly the Delorenzo Family Trust) to enter into
a written amortization agreement with the City, and allow the City to use the
billboard for public service announcements and other civic notifications .
City Council
December 3, 2013
Page 2 of 3
3. On October 4, 2011, the Council approved an advertising and amortization
agreement with the billboard owner (otherwise known as the Agreement and
provided as Attachment "A"). Terms include a 40-year amortization period and City
access-at no cost-to one of eight advertising slots per minute for civic
announcements. The Agreement also provides Temple City businesses with a
reduced 50% billboard-advertising fee.
4. Between May and July 2013, meetings between City staff and Pierre Delorenzo
_______ (representing_Iemple_City_Gateway_LLC)_were_cooducted_to_furtbeL djscuss_usec_ ___ _
terms for programming of the City's advertisement slots, as well as to hear
concerns by Mr. Delorenzo regarding possible billboard obstruction by newly
planted Rosemead Boulevard street trees.
5. In early August 2013, billboard installation began, prompting necessary contractual
amendments to establish creative guidelines for the City's advertisement slots, and
address possible billboard visibility and obstruction concerns from the installation
of incoming Rosemead Boulevard street trees.
6. On August 6, 2013, the City Attorney, City Manager and Assistant to the City
Manager met with Mr. Delorenzo to present the draft Amendment (otherwise
known as the Amendment and provided as Attachment "B"), which among other
things provides reasonable limitations on the City's installation of Rosemead
Boulevard street trees and other fixtures so as not to potentially obstruct the
billboard.
ANALYSIS:
Two years ago, Council approved the Agreement with an understanding that a
subsequent amendment be executed to formalize conditions of the City's advertising
slots, as well as to address any unforeseen circumstances. With the billboard's recen t
"go-live" launch, the proposed Amendment-summarized below-defines three
operative provisions for ease of use, and greater clarification on certain terms and
reasonable limitations:
• Section 1.4, Local Business Discount. Revised language interprets those "local
businesses" that qualify for the advertising discount offered by the billboard owner.
El igible businesses must be located within city limits, hold a valid City business
license and be activity operating. Language was also added whereas the City will
not compete with the billboard owner in advertising the local business discount;
• Attachment "E". Amended to read as Exhibit "A", this section provides creative
guidelines and an artwork submittal process for the City's billboard advertising
slots. It also sets conditions to, and provides the City remote access to the
City Council
December 3, 2013
Page 3 of 3
billboard's distribution software site for the timely upload of art files; and
• Article VII, Accommodations by City. This article includes reasonable limitations on
the City's installment of trees, landscaping and fixtures so as not to obstruct the
billboard's visibility. Provisions include City responsibilities to relocate an adjacent
existing streetlight, and maintain certain trees at no more than 20 feet high and 10
feet wide.
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of these restrictions and has proposed removing additional trees (i.e., Trees 3 and 4 per
Attachment B-1 of the Amendment) and further limiting tree width and height. In staff's
opinion, after consultation with the City's landscape contractor and arborist, the billboard
owner's proposed additional restrictions could jeopardize tree health and negatively
affect the Council's approved landscape design for Rosemead Boulevard. For this
reason, staff recommends the Amendment's contained mitigation measures.
CONCLUSION:
Council approval of the requested Amendment provides the City with clear protocols in
the programming of its provided advertising slots, as well as the establishment of
another communications tool for purposes of publicizing community events and
emergency notifications. This Amendment also proactively addresses future Rosemead
Boulevard tree maintenance concerns so as not to potentially obstruct billboard visibility,
while promoting local economic development by allowing Temple City businesses to
prominently advertise their goods and services at a significantly reduced advertising
rate.
FISCAL IMPACT:
The requested Amendment does not have an impact to the Fiscal Year (FY) 2013-14
adopted City Budget, however if approved, the City would receive approximately $3.4
million in free advertising over the billboard's amortization schedule, set to expire in
2051.
ATTACHMENTS:
A. Approved Agreement (October 4, 2011)
B. Proposed Amendment
ATTACHIV1ENT A
COMMUNITY DEVElOPMENT DEPARTMENT
DATE:
TO:
FROM:
MEMORANDUM
October 4, 2011
The Honorable City Council
Jose E. Pulido, City Manager~
Via: Steven M. Masura, Community Development Director
By: Joseph M. Lambert, Community Development Manager
SUBJECT: APPROVAL OF AN ADVERTISING AND AMORTIZATION AGREEMENT
FOR AN UPGRADED OUTDOOR ADVERTISING STRUCTURE FOR
PROPERTY LOCATED AT 5402 ROSEMEAD BOULEVARD
RECOMMENDATION:
The City Council is requested to:
a) Review and approve an advertising and amortization agreement between the City
of Temple City and the Delorenzo Family Trust for an upgraded outdoor
advertising structure (d igital billboard); and
b) Authorize the City Manager to execute the Advertising and Amortization
Agreement (i.e., Amortization Agreement) with the Delorenzo Family Trust.
BACKGROUND:
1. On January 11, 2011, the Planning Commission conducted a public hearing and
adopted a Resolution recommending that the City Council adopt an Ordinance to
allow qualifying existing legal nonconforming outdoor advertising structures
(billboards) to be modernized and upgraded .
2. On February 15, 2011, the City Council adopted Ordinance No. 11-941, which allows
qualifying existing legal nonconforming billboards to be modernized and upgraded to
digita l billboards, subject to certain findings contained in Ordinance No. 11-941, and
subject to approva l of a conditional use permit (CUP). The Ordinance also requires
that the property owner enter into an amortization agreement for the upgraded
billboard, which must be approved by the City Council.
City Council
October 4, 2011
Page 2
3. On January 6, 2011, the applicant, Pierre Delorenzo applied for a CUP (CUP 11-
1777) to upgrade the legal non-conforming billboard that currently exists on the
subject property, 5402 Rosemead Boulevard.
4 . The Temple City Planning Commission approved CUP 11-1777 on September 13,
2011, by adopting Resolution No.11-2332 PC. One of the conditions of approval
contained in the aforementioned Resolution requires the property owner enter into a
written agreement with the City for the amortization of the billboard, and including
provisions for advertising on the billboard.
5. On September 12, 2011, the City Attorney finalized the draft Amortization
Agreement for the City Council's consideration .
ANALYSIS:
Over the past few months, the City Manager and City Attorney have worked with Pierre
Delorenzo to negotiate the parameters of the draft Amortization Agreement with the City
. (Attachment "A"). As currently proposed, Mr. Delorenzo's multi-phased project will consist
of nearly $1.5 million in privately funded improvements to this property that includes
architectural upgrades to the existing buildings (i.e., automobile repair shop and a self-
serve car wash) as well as the replacement of a deteriorated legal nonconforming billboard
with two new Light Emitting Diodes (LED) 14 foot by 48 foot billboards (Attachment "B").
In addition, Mr. Delorenzo has agreed to provide the City with access to one out of every
eight advertisement slots on both LEOs for public service announcements and other civic
notifications that is estimated at $3.4 million over the life of the agreement. Mr. Delorenzo
will also provide Temple City businesses with a reduced advertising fee (i.e ., 50%).
It should be noted that the 40 year amortization period is necessary in order for Mr.
Delorenzo to recuperate his private $1 .5 million investment. After the 40 year period,
the LED billboards would have to be removed from this property (i.e., in 2051).
In September, the Planning Commission reviewed this proposed project and approved a
Conditional Use Perm it 11-1777. The Planning Commission agreed that the proposed
property upgrades which include the two billboards will result in significant aesthetic
improvements to a dilapidated property and that the finished project would complement
the upcoming Rosemead Boulevard Safety Enhancement and Beautification Project.
CONCLUSION:
Allowing the existing legal nonconforming billboard to be modernized and upgraded would
enhance the aesthetics of the Rosemead Boulevard corridor and the City at-large. The
draft Amortization Agreement would also allow the City to keep its residents and visitors
better informed about City events, programs and activities. Therefore, the City Council is
City Council
October 4, 2011
Page 3
requested to consider approval of the Amortization Agreement between the City of
Temple City and the Delorenzo Family Trust for an upgraded digital billboard.
FISCAL IMPACT:
This item does not have an impact on the Fiscal Year (FY) 2011-12 City Budget
however if approved by the City Council, the City_woulcLreceive approximately $3 .4
million in free advertising during the term of the Amortization Agreement.
ATTACHMENTS:
A. Advertising and Amortization Agreement between the City ofT emple City and the
Delorenzo Family Trust, and attachments thereto.
B. Photos of Existing Property (3 pages)-"Before", and Proposed Digital Outdoor
Advertising Billboard Sign rendering (1 page)-"After."
OFFICIAL BUSINESS
Document exempt from recor ding
fees pursu ant to Cal. Gov. Code§ 6103 .
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Tem p l e Cit y
9701 Las Tunas Drive
Temple City, CA 9 1780
ATTN : Community Development Dept.
SPACE ABOVE THIS LINE FOR RECORDING USE
DIGITAL BILLBOARD ADVERTISING AND
AMORTIZATION AGREEMENT
by and between the
CITY OF TEMPLE CITY
and
DELORENZO FAMILY TRUST
Dated , 2011 ------
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DIGITAL BILLBOARD ADVERTISING AND AMORTIZATION AGREEMENT
This Digital Billboard Adve1tizing and Amortization Agreement ("Agreement"), which is
dated for reference as indicated on the cover page, is hereby entered into by and between the
CITY OF TEMPLE CITY , a California chatter city ("City") and the ·DELORENZO FAMILY
TRUST ("Digital Billboard Owner") on the following terms and conditions:
RECITALS
A. New outdoor advertizing structures (hereinafter referred to-as-"billboaTils") are
prohibited in the City of Temple City except for in the M-1 zone. However, Section 9329 of the
Temple City Municipal Code allows existing legal non-confonning billboards to be upgraded
and modemized subject to a Conditional Use Permit.
B. A legal non-conforming billboard currently exists on the Prope1ty ("Existing
Billboard"), as well as a self-serve car wash and automobile repair shop. The Digital Billboard
Owner has applied for and obtained a Conditional Use Pe1mit to expand and remodel the existing
car wash and repair shop on the Propetty and to modemize the Existing Billboard as provided for
in Section 9329 of the Temple City Municipal Code (''CUP 11-1777").
C. CUP 11-1777 allows the Digital Billboard Owner to demolish the Existing
Billboard and constmct a dual-sided 14'x 48' LED digital billboard on the Property ("Digital
Billboard").
D. Subsection (B)(4) of Section 9329 requires any person who obtains a Conditional
use pemlit to modernize an existing billboard to enter into a written agreement with the City
providing for the ammtization of the new, modemized digital billboard and the provision of
adve1tizing space to the City on the new digital billboard.
E . The Digital Billboard Owner is a co-owner of the Property. The Digital Billboard
Owner has submitted proof of the other co-owner's consent to the installation of the Digital
Billboard.
DEFINITIONS
"Action" shall mean any suit (whether legal, equitable, or declaratory in nature),
proceeding or hearing (whether administrative or ju dicial), arbitration or mediation (whether
voluntary, court-ordered, binding, or non-binding), or other altemative dispute resolution
process, and the filing, recording, or service of any process, notice, claim, demand, lien, or other
inst.mment which is a prerequisite or prelude to commencement of the Action.
"Amortization Period" shall mean the period of tin1e the Digit al Billboard Owner is
permitted to use the Digital Billboard, as provided for in Section 2. I of this Agreement.
"Existing Billboard" shall mean that dual-sided, externally lighted billboard located on
the Prope1ty.
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"City" shall mean the City of Temple City, a chat1er city and municipal corporation
formed and existing under the laws of t he State of Ca lifornia. The tem1 "City" shal l also inc lude
any assignee of, or successor to, its rights, powers, and responsibilities.
"City Manager" shall mean the City Manager of the City and/or any person designated
and authorize d by the City Manager to act in the City Manager's capacity with regard to this
Agreement.
"Costs and Expe11ses" shall mean cou11 costs, filing, recording, and service fees, copying
costs, exhibit production costs , special media rental costs, attorneys' fees, consultants' fees ,
witn ess fees (both lay and expert), travel expenses, deposition and transcript costs, costs of
preparing notices, claims, and demands, investigati on cost s, and any other cost or expense
reasonably and necessmily incurred by the party.
"CUP 11-1777" sha ll mean that Conditional Use Pennit obtained by Digital Billboard
Owner for the Project.
"Default" shall mean the failure of a party to petform any material action or covenant
required by and within the time periods provided herein following notice and opportun ity to
cure, as set f011h in Section 5.1 [Default] of this Agreement . A material v iolation of a condition
of approval of CUP 11-1 777 shall be deemed a default.
uDigital Billboard" shall mean the dual-sided 1 4' x 48' LED hillboard the Digital
Billboard Owner is permitted to constJUct on the Prope1ty after the demolition of the Existing
Billboard pursuant t o Conditional Use Permit 11-l 777, as depicted on the diagram attached
hereto and incorporated herein by reference as Attachment "C".
"Digital Billboard Owner" shall mean the Delorenzo Family Trust. The t erm "Digital
Billboard Owner" sllall, to the extent such is expressly pe1mitted under this Agreement, include
any assignee of, or successor to, the rights and responsibi lities of the Di gital Billboard Owner
under this Agreement.
"Effective Date" shall mean the date the Agreemen t ha s been formally approved by the
City's governing board and executed by the appropriate authorities of the City and Digital
Billboard Owner.
"Project" shall mean the total project described in CUP 11-1777, as described in more
detail in Attachment "D" hereto.
"Project Approvals" shall mean any land use, development, and building approvals and
ent itlements required by the City for the development and constmction of the Project, including,
but not limited to, Conditional Use Permit No . 11-1777.
"Property" shall mean those certain parcels of real prope1ty located at 5402 Rosemead
Boulevard, Temple City, California, and 90 11 Olive Street, Temple City, Califomia and
commonly known as Assessor's Parcel N umbers 5388-004-014 and 5388-004-017 , as more
particularly desctibed in the legal description attached hereto and incorporated herein by
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·· ..
··· ...
reference as Attachment "A" and as depicted on the diagram attached hereto and incorporated
herein by reference as Attachment "B".
"Property Owner" shall mean the Delorenzo Fami ly Tmst and the Demarco Family
Trust. "Property Owner" shall include any successors and assignees to the Property Owner's
interests in the Property."
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made by
the pruties and contained herein and other consideration, the value and adequacy of-which are
hereby acknowledged, the parties agree as follows :
ARTICLE I~ PROVISION OF ADVERTISING SPACE TO CITY
1.1. Advertising Space. Digital Billboard Owner shall make adve11ising space on the
Digital Billboard available to the City. One slot in the advertising rotation for the Digital
Billboard shall be made avai lable to the City at all times at no cost to the City. The terms upon
which the Digital Billboard Owner shall make adve11ising space available to the City are more
fully desc1ibed in Attachment "E" to this Agreement.
1.2. Non-Use By Ci ty. City shall notify Digital Billboard Owner of any planned
periods of non-use of its adve11ising space. Notification shall be given to the Digital Billboard
Owner at least thi1ty (30) days prior t o the commencement of the planned period of non-use.
Digital Billboard Owner may utilize the City 's advert ising space during any such planned period
of non-use.
1.3. Operation of Digital Billboard. D igital Billboard Owner shall operate the Digital
Billboard in accordance with the Project Approvals, including CUP 11 -1777 , a copy of which is
attached as Attachment "F" to this Agreement.
ARTICLE II-AMORTIZATION OF DIGITAL BILLBOARD
2 .1. Ammtization Period . Digital Billboard Owner shall be permitted to use the
Digital Billboard for a pe1iod of fo11y (40) years, commencing on the Effective Date of this
Agreement ("Amortization Period"). Digital Billboard Owner and City agree that this
Amortization Period is anticipated to provide Digital Billboard Owner sufficient time t o recoup
its investment in the Digital Billboard. For the duration of the Amortization Period, the Digital
Billboru·d shall be deemed to be a legal nonconfmming sign under the Temple City Municipal
Code and the City shall not seek to remove the Digital Billboard, except as may be provided
under Section 2.3.2 [Early Removal] of this Agreement
2 .2 . Maintenance. The Digital Billboard Owner covenants and agrees for itself, its
successors and assigns, and any successor-in-interest to the Digital Billboard, or any pa1t thereof,
that it will, at its sole cost and expense:
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2.2.1. Maintain the appearance and safety of the Digital Billboard (including all
improvements and fixtures related theJ'eto) in good order, condition, and repair, and free from the
accumulation of trash, waste materials, and other debris;
2.2.2. Remove all graffiti placed upon the Digital Billboard (including all
improvements and fixtures related thereto) within seventy-two (72) hours of receiving written
notice as provided in this Agreement, or under the City's Municipal Code, from the City. In the
event of a breach of this covenant and of a failure to cure the breach within tifteen ( 15) days after
service of a written notice by City, the City or its agents, employees and contractors shall have
the right to enter upon the Property and Digital Billboard without further notice and to take such
actions as are necessary to cure the breach. Digital Billboard-ewner shall reimburse City for all
costs associated with cure of the breach (including but not limited to, staff services ,
admini s trative costs, legal se1vices, and third-party costs), within fifteen ( 15) days after se1vice
of a written notice by City . If Digital Billboard Owner fails to pay within the time provided,
such costs shall be a lien upon the Digital Billboard, as provided by Califomia Civil Code §
28 81 . The City may enforce and foreclose such lien in any manner legally allowed.
2.3. Removal ofSign.
2.3.1. Removal at End of Amortization Period. On or before the expiration of the
Ammtization Period, Digital Billboard Owner shall, at its sole cost and expense, retnove the
Digital Billboard from the Property to the satisfaction of the City's Community Development
Director (or equivalent department head in the event such title should change).
2 .3.2. Early Removal. The City may require that Digital Billboard Owner remove
the Digital Billboard prior to the expiration of the Amottization Peliod in any of the following
events:
2.3.2.1 . UncW"ed Default. Digital Billboard Owner fails to cure a default
of this Agreement within the time provided for cure under Aliicle V [Default] of this Agreement;
2 .3.2.2 . Bankmptcy. The filing against Digital Billboard Owner of a
petition in bank:IUptcy or other similar proceeding under law for relief of debtors or the
involuntary appointment of a receiver, custodian, liquidator or trustee in banlauptcy of D igital
Billboard Owner's Prope1ty where such petition or appointment is not vacated or discharged
within sixty (60) calendar days after the fiting or making thereof. ·
2.3.2.3. Insolvency. Digital Billboard Owner becomes insolvent or
voluntarily or involuntarily makes an assigrunent or transfer for the benefit of creditors other
than the City, and/or the voluntary or involuntary appointment of a receiver, custodian, liquidator
or trustee of Digital Billboard Owner's property .
2.4. Security. Digital Billboard Owner shall pW"chase and maintain a perfom1ance
bond or other security, such as a cash deposit or irrevocable letter of credit, in accordance with
the schedule contained herein, to secure the performance of its obligations under this Agreement.
In the event of an uncured breach of the Digital Billboard Owners obligations undeT Sections 2 .2
(Maintenance] or Section 2.3 (Removal of Sign] of this Agreement, City may make claim against
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or draw upon the bond or other security an amount equal to the costs incuned by City to remedy
the breach.
2.4.1. During the first five years of this Agreement, Digital Billboard Owner shall
purchase and maintain a perfonnance bond or other security in an amount greater than or equal
to five thousand dollm·s ($5,000).
2.4.2. Dll1ing the sixth through tenth years of this Agreement, Digital Billboard
Owner shall purchase and maintain a performance bond or other seclll'ity in an amount greater
than or equal to ten thousand dollars ($10 ,000).
2.4.3. During the eleventh through fifteenth years of this Agreement, Digital
Billboard Owner shall purchase and maintain a perfmmance bond or other security in an amount
greater than or equal to fifteen thousand dollars ($15,000).
ARTICLE III -COVENANTS RUN WITH THE LAND
3.1. The Covenants set forth herein shall JUn with the Property and shall be binding
upon Digital Billboard Owner. The Covenants may be enforced by the City. Digital Billboard
Owner shall not challenge the Covenants as set fmth in this Agreem ent or any right of the City
created under this Agreement. Digital Billboard Owner expressly acknowledges and agrees that
the Covenants are reasonab le restraints on Digital Billboard Owner's right to own, use, maintain,
and transfer any interest in the Digital Billboard and are not and shall not be construed to be an
unreasonable restraint on alienation.
3.2. The Covenants and provisions of thi s Agreement do not limit the right of any
mot1gagee, or beneficiary under a deed of trust who has provided funds for acquisi tion of, or
cons truction of buildings upon the Propetiy to foreclose or othetwise enforce any mm1gage or
deed of trust upon the Propetty or any pmtion thereof, or the right of any mmtgagee or
beneficiary under a deed of trust, to exercise any of its remedies for the enforcement of any
p ledge or lien upon the Property; provided, however, that, in the event of any foreclosure under
any such m01tgage or deed of trust or a sale pw·suant to any power of sale included in any such
mortgage or deed of trust, the purchaser or purchasers and their successors and assigns and the
Property shall be and shall continue to be subject to all of the Covenants and provisions
contained in this Agreement. Upon request of the Digital Billboard Owner, City shall execute
and deliver to Digital Billboard Owner an Estoppel Ce1tificate in favor of an existing or
prospective lender or a proposed assignee of Digita l Billboard Owner, which sets fmth the
matetial terms of this Agreement, a representation that this Agreement is in full force and effect,
and that there are no defaults hereunder.
ARTICLE IV-INDEMNITY
4.1. General lndemnitv. Except as to the sole negligence, active negligence or
willful misconduct of the City, Digital Billboard Owner expressly agrees to, and shall,
indemnify, defend, release, and hold the City and its officia ls, officers, employees, agents, and
contractors hmmless from and against any Action, liability, loss, damage , entry, judgment, order,
lien, and Costs and Expenses which arises out of, or are in any way related to, any act or
RIV 114842-7 132-3657 v2 -5-
omission of Digital Billboard Owner, or its officers, directors, employees, agents, or contractors,
c01mected with the perfonnance under this Agreement, the construction, use, or operation of the
Project or Digital Billboard, notwithstanding that the City may have benefited therefrom, or any
challenge to this Agreement. This Section shall apply to any acts or omissions, willful
misconduct or negligent conduct, whether active or passive, on the part of Digital Billboard
Owner 's officers, directors, employees, agents and contractors. The Parties expressly agree that
any payment, or Costs and Expenses the City incurs or makes to, or on behalf of, an injured
employee under the City's self administered workers' compensation, is included as a loss or
Costs and Expenses for the pmpose of this Section. The City shall not be responsible for any
acts , errors or omissions of any person or entity except the City and its officers, agents, servants,
employees or contractors. The Pmiies expressly agree that the obligations of Digital Billboa1-=-d
Owner under this Section shall survive the expiration or earl y te1mination of the Agreement.
ARTICLE V-DEFAULT AND REMEDIES
5.1 . Default. ln the event of a Default, the injured party shall give written "Notice of
Default" t o the defaulting party, specifying the Default. Delay in giving such notice shall not
constitute a wa:iver of the Default. If the defaulting pa11y fails to cure the Default within thirty
(30) days after receipt of a notice specifying the Default, or, if the Default is of a nature that
ca1mot be cured within thitty (30) days , the defau lting party fails to commence to cure the
Default within said thi1ty (30) days and thereafter diligently prosecute such cure to compl etion,
then the defaulting pmty shall be liable to the injured pmty for any and all damages caused by
such Default, unless otherwise provided for by this Agreement.
5.2 . No Waiver. Failure to insist on any one occasion upon strict compli ance with
any of the terms , covenants or conditions hereof shall not be deemed a waiver of such term ,
covenant or condition, nor shall any waiver or relinquishment of any rights or power s hereunder
at any one time or more times be deemed a waiver or relinquishment of such other light or power
at any other time or times.
5.3 . Specific Performance. The use, maintenance, and removal of the Billboard in
accordance with this Agreement is of a special and unique kind and character and the rights
granted to the City, and its successors and assigns hereunder, are of a similar special and unique
kind and character so that if there is an uncured default by Digital Billboard Owner of this
Agreement, the City, and its successors and assigns, would not have an adequate remedy at law.
Therefore, the City's rights , and those of its successors and assigns hereunder, may be enforced
by an action for specific perfmmance and such other equitable relief as is provided by the laws
of the State of California. In any action seeking enforcement or interpretation ofany ofthe tenns
or provisions of this Agreement, the prevailing pa1ty shall be awarded, in addition to damages,
injunctive relief, or other relief, and its Litigation Expenses, as provided in Section 5.4 .3
[Attorneys ' Fees] ofthis Agreement.
5.4. Legal Actions. In addition to any other tights and remedie s, any pa11y may
institute a legal Action to require the cure of any Default and to recover damages for any Default,
or to obtain any other remedy consistent with the purpose of this Agreement. The following
provisions shall apply to any such legal Action:
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5 .4.1. Jurisdiction and Venue. Legal Actions must be instituted and maintained
in the Superior Court of the County of Los Angeles, State of Califomia, N01tbeast District, or, if
appropriate, in the Uruted States District Comt for the Central District of Califomia, Westem
Division. Digital Billboard Owner specifically waives any r ights provided to it pursuant to
Califomia Code of CivH Procedure §394 and any federal statute or rule of similar effect.
5.4.2. Applicable Law. The laws of the State of California shall govem the
interpretation and enforcement of this Agreement.
5.4.3. Attorney's Fees. In the event either party commences an Action against
theother panywruch arises out of a D efau t o , reac of, failure to perfom1, or that is otherwise
related to, this Agreement, then the Prevailing Pa1ty (as defined herein) in the Action shall be
entitled to recover its Litigation Expenses (as defined herein) from the other party in addition to
whatever relief t o which the prevailing pa1ty may be entitled. For purposes of this section,
"Litigation Expenses" includes all Costs and Expenses, .to the extent such are reasonable in
amount, that are actually and necessarily incuned in good faith by the Prevailing Pa11y directly
related to the Action. For the purposes of this section, "Prevai ling Party" shall have the meaning
ascribed in§ 1 032(a)(4) of the Califomia Code of Civil Procedure.
5.5. llights and Remedies are Cumulative. The rights and remedies of the Parties
are cumulative, and the exercise by a party of one or more of its Iights or remedies shall not
preclude the exercise by it, at the same or different time, of any other rights or remedies for the
same Default or any other Default by another Party.
5 .6. Termination by Citv. The City may tenninate this Agreement upon the
occmrence of any of the following events:
5.6.1. Digital Billboard Owner (or any successor in interest) assigns or attempts
to assign the Agreement or any rights therein in viola tio n of any provision of this Agreemeut,
including but not limited to Section 6.1 [Assignment];
5.6.2. Digital Billboard Owner (or any successor in interest) becomes insolvent
or Digital Billboard Owner (or any successor in interest) voluntarily or involuntarily makes an
assignment or transfer for the benefit of creditors other than the C ity, and/or Digital Billboard
Owner is subject to the voluntary or involuntary appointment of a receiver, custodian, liquidator
or trustee of Digital Billboard Owner's property and/or the Billboard;
5.6.3. Notwithstanding Section 5.1, if Digital Billboard Owner fails to provide
advertising space to City as require by Article I of this Agreement the City may terminate this
Agreement immediately;
5.6.4. Notwithstanding Section 5.1, if Digital Billboard Owner fails to prov ide
the security required by Section 2.5 of this Agreement the City may tem1inate this Agreement
immediately;
5.6.5. Digital Billboard Owner is otherwise in Default of this Agreement and fails
to cure such Default within the time set forth in Section 5.1 [Default] hereof.
RlV #4842·7 132-3657 v2 -7-
If, after the occwTence of any of the above-entitled events, the City elects, in its
sole discretion, to tenninate this Agreement, then all rights of Digital Billboard Owner and any
person or entity claiming by or through Digital Billboard Owner arising under this Agreement or
with regard to the Billboard as may arise under this Agreement shall immediately cease and be
tem1inated, except that any obligations ofthe Digital Billboard Owner to indemnify or reimburse
the City or the City shall continue in full force and effect and the City shall have all of the
remedies to enforce a breach or a Default of this Agreement as may be provided hereunder and
under the law.
ARTICLE VI -GENERAL PROVISIONS
6 .1. Assignment. Digital Billboard Owner shall make no assignment, conveyance, or
other transfer ("AssignmenC) of any of its rights or obligations under this Agreement , without
first obtaining the City's written consent, which consent the City will not unreasonably withho ld ,
provided the assignment is necessary to effectuate the intent of the Agreement, to facilitate a sale
of the Digital Billboard Owner's interest in the Digital Billboard, to effectuate an estate plan of
the Digital Billboard Owner, and/or the assignee is detennined by the City, in its sole discretion,
to be capable of can·ying out the pu1pose and intent of the Agreement. Notwithstanding the
foregoing, no transfer of Digital Billboard Owner's rights hereunder to an affil iate entity or
entity owned or controlled by the Digital Billboard Owner or any of its trustees or beneficiaries
shall be deemed an assignment hereunder.
6.2. Non-liability of City Officials and Employees. No board member, official,
consultant, attorney, or employee of the City shall be personally liable to Digital Billboard
Owner, or any successor, or assign, or any person claiming under or through them, in the event
of any Default or breach by the City or for any amount which may become due to Digital
Billboard Owner or to its successor, or on any obligations arising under this Agreement.
6.3. Conflicts of Interest. No City Council member, official, consultant, attomey, or
employee of the City shall have any personal interest, direct or indirect, in this Agreement nor
shall any such member, official or employee pa1ticipate in any decision relating to this
Agreement which affects his or her personal interests or the interests of any cmporation ,
prutnership or association in which he or she is , directly or indirectly, interested.
6.4. No Third Party Beneficiaries. This Agreement is for the sole and exclusive
benefit of the City and Digital Billboard Owner. No other parties or entities are intended to be, or
shall be considered, a beneficiary of the performance of any of the parties ' obligati ons under this
Agreement.
6.5. Integration. This Agreement consists of pages 1 through 11, inclusive, and
Attachments "A" through "F" attached hereto and incorporated herein by this reference, which
constitute the entire understanding and agreement of the patties and supersedes all negotiations
or previous agreements between the parties with respect to all or any part of the subject matter
hereof.
R!V #4842-7132-3657 v2 -8-
6.6 . Recitals and Definitions. The Recitals and Definitions set f01th at the beginning
of this Agreement are a substantive and integral pa11 of this Agreement and are incorporated by
reference in the Operative Provisions ofthis Agreement.
6. 7. Titles and Captions. Titles and captions are for convenience of reference only
and do not define, describe or limit the scope or the intent of this Agreement or any of its tenns.
Reference to section numbers are to sections in this Agreement unless expressly stated othe1wise.
6.8. Interpretation. The City and Digital Billboard Owner acknowledge that this
Agreement is the product of mutual run1s-length negotiation and drafting and each represents and
-wmTants toihe other t h at it h~ been represented oy legal counsel in tbe negotiation and drafting
of this Agreement. Accordingly, the rule of construction, which provides the ambiguities in a
document, shall be construed against the drafter of that document shall h ave no application to the
interpretation and enforcement of this Agreement. In any Action or proceeding to interpret or
enforce this Agreement, the finder of fact may refer to such extrinsic evidence not in dir ect
conflict with any specific provision of this Agreement to determine and give effect to the
intention of the parties hereto.
6.9. Severabilitv. Each provision, tenn, condition, covenant, and/or restriction, in
whole and in pm1, in this Agreement shall be considered severable. In the event any provision,
tenn, condition, covenant, and/or restriction, in whole and/or in part, in this Agreement is
declared invalid, unconstitutional, or void for any reason, such provision or pa1t thereof shall be
severed from this Agreement and shall not affect any other provision, tern1, condition, covenant,
and/or restriction of this Agreement and the remainder of the Agreement shall continue in full
force and effect.
6.1 0. Amendments to Agreement Any amendments to this Agreement must be in
writing and signed b y the appropriate authorities o f the City and Digital Billboard Owner.
6.11. Administration. Fol1owing approval of this Agreement by the City Council, the
City shall exercise its rights, pe1form its obligations, and otl1erwise admini ster this Agreement
through the Office of the City Manager. The City Manager shall have the authority to issue
interpretations and to make minor amendments to this Agreement on behalf of the Cit y provided
such actions do not materially increase the ob ligations of the City or Digital Billboard Owner,
make a commitment of funds to be paid by or costs to be incuned by the City, or result in a
discretionary extension of time in excess of thii1y (30) days. All other changes, modifications,
and amendments shall require the prior approval of the City Council.
6.12. Notices, Demands and Communications Between the Parties. Formal notices,
demands and communications between the p arties shall be given in writing and personally
served or dispatched by registered or certified mail , postage prepaid , return receipt requested, to
the principal offices of the parties, as designated in this Section, or telefaxed to the facsimile
number listed below followed by dispatch as above described. Such written notices, demands,
and communications may be sent in the same manner to such other addresses as either party may
from time to time designate by mail as provided in this Section. Any such notice shall be deemed
to have been received (i) upon the date personal service is effected, if given by personal service,
(ii) upon the expiration of one ( 1) business day, if telefaxed, or (iii) upon the expiration of three
R fV #4842-7132·3657 v2 -9-
(3) business days after mailing, if given by certified mail, retum receipt requested, postage
prepaid.
lf notice is to be made to the City:
City of Temple City
Attn: City Manager
9701 Las Tunas Drive
Temple City, California 91780
Facsimile transmission may be made to: (626) 285-8192
With a copy to:
Burke, Williams & Sorensen, LLP
Attn: Eric S. Vail , Temple City City Attorney
2280 Market Street, Suite 300
Riverside, Califomia 92501
If notice is to be made to Digital Billboard Owner:
Delorenzo Family Tmst
2566 Wagon Train Lane
Diamond Bar, CA 91765
Facsimile transmission may be made to: (909) 396-0830
6.13. Computation of Time. The time in which any act is to be done under this
Agreement is computed by excluding the first day (such as the day escrow opens) and including
the last day, unless the last day is a holiday or Saturday or Sunday, and then that day is also
excluded . The term "holiday" shall mean all holidays as spec-ified in Government Code § 6700
and § 6701 . If any act is to be done by a patticular time during a day, that time shall be Pacific
Standard Zone time.
6.14. Authoritv. The individuals executing this Agreement on behalf of Digital
Billboard Owner and the instmments referenced on behalf of Digital Billboard Owner represent
and wanant that they have the legal power, right and actual authority to bind Digital Billboard
Owner to the terms and conditions hereof and thereof.
6.15. Counterpart Originals . This Agreement may be executed in duplicate originals,
each of which is deemed to be an original.
6 .16 . Effective Date of Agreement. This Agreement shall not become effective until
the date it has been formally approved by the City's Governing Board and executed by the
appropriate authorities of the City and Digital Billboard Owner.
RIV 114842-7132·3657 v2 -10-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date
and year first-above written.
ATTEST:
By: ____________ --,-
Mary Flandrick
City Clerk
APPROVED AS TO FORM
By: ___________ _
Eric S. Vail
City Attomey
[Notary Acknowledgement Required]
[Notary Acknowledgement Required]
RIV #4842-7132-3657 v2
CITY:
CITY OF TEMPLE CITY
By: ____________ _
Jose Pulido
City Manager
DIGITAL BILLBOARD OWNER:
DELORENZO FAMILY TRUST
By: __________ _
By: --------------
-11-
ATTACHMENT "A"
(Legal Description of Site)
SUBJECT PROPERTY IS SITUATION IN THE STATE OF CALIFORNIA , COUNTY OF
LOS ANGELES AND IS DESCRIBED AS FOLLOWS:
~ _____ LOT_3 BLO_CK C _OE_TRACL_N0._11218_AS_PER MAP_RECORDED IN_B_O_QK...2Q2Y_A GE ..,_ _____ _
47 THROUGH 48 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY.
R IV 114842-7132 -3657 v2 -1-
RIV #4842-7 132-3 657 v2
ATTACHMENT "B"
(Diagram of Site)
ATTACHMENT "B"
(Diagram of Site)
ATTACHMENT "B"
(Diagram of Site)
-1-
~ j;jj ~idn~!~~~ ;~~ jill II' · ................. HH 111111 ... ~r..,llli~·r ...
tml I
I I • I' 'I I I If 1 lil!!!rllllJluur~N:UIIl I ;::::;~•:~ ;~~::~:~~~~ I
----··-· ---., ___ , _____ --·-·--·------__________________________ _l
RIV 114842 -7 132-3657 v2
ATTACHMENT "C"
(Diagram of Billboard)
ATTACHMENT "C"
(Diagram ofBillboard)
ATTACHMENT "C''
(Diagram of Billboard)
-1 -
ROSEMEAD BOULEVARD /
/
~/
COMPREHENSIVE SITE PLAN + FLOOR PLAN
TEMPLE CI1YGATEWAY
BUILDING RE-FACADE & STOREFRONT ADDITION
. ;'?~.
···~ . '~ . ./
Scale: 118" = 1' -0"
Nadel Architects, Inc.
WEST
SOUTH
~------14' x48'l.ED SQ-.
.-------IIMbo l Paneb (Frame) -lltu$lwl F"onish
.------Sleel ~-Brushtod FTniah r------Mot\11 c.~~-Palt\tbd -c..., Ocllnge"
,----Clllnnellel!o!t$-P~inrecl & Baddlt 'Reglil Blue' ,....----Arttl~ll'dal P1rnela-
Paln!N "Pf>BI'f G...y
Vehi:le Seni'ICII Center-4 Bays
M.:aJ P..-.elslll Clll!tl1ang-
P1inled ~I Blue'
Vet:!de Car W.ub -4 Bays
r-------··-Aluninum/Gial;:s StCIM!rorn Addltlcn-EIM!Iod Rnllh
,-----Mml C.nopy-Pair"Ud 'Ca!tD!n 0ran;e•
,.-----SIMI S..ppo1111 • Blust!ad 111Sh
Vehicle Car Wash· 4 &ys
BUILDING ELEVATIONS
TEMPLE CITY GATEWAY
BUILDJNG RE-FACADE & STOREFRONT ADDITION
NL~\ \. I
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Scale: 1/16" :: 1' -o-
Nadel Architects, Inc.
Project Summary
ATTACHMENT "D"
(Project I Timeline)
Phase I-5402 Rosemead Blvd. & 9011 Olive Street
• Removal of the Existing Billboard Structure.
• 500 Sqft Storefront Addition & Expansion of Vehicle Service Shop Area
• Complete Re-fa<;ade and Modernization of the Vehicle Service Building and Car Wash
--------,Structur e-----------------------------------~
Phase II-5402 Rosemead Blvd.
• Installation of a New Dual-Sided Digital Billboard Support Structure
• Installation of the Brushed Aluminum Architectural Billboard Frames.
• Installation of the North-bound Facing 14 'x 48' Digital Screen (South Elevation).
• Installation of the South-bound Facing Backlit Panaflex Screen (North Elevation).
Phase III -5402 Rosemead Blvd.
• Installation of the South-bound Facing 14'x 48' Digital Screen (North Elevation).
Phase IV-5402 Rosemead Blvd. & 9011 Olive Street
• Installation of the "Temple City Gateway" Overhand Spanning from the West-end
Vehicle Service Building Parcel tot eh East-end Car Wash Stmcture Parcel.
• Installation of the "Temple City Gateway" Channel Letters.
• Installation of Architectural Outdoor Lighting Focused on Illuminating the "Temple City
Gateway" Overhand, Building Elements and Landscaped Areas.
• New Designated Landscaped Areas within the West-end Service Center Building Parcel
and East-end Car Wash Structure Parcel.
Project Times
Phase I & II
• Within 12 months commencing upon removal of the existing billboard.
Phases III & IV
• Within 18 months commencing upon removal ofthe existing billboard.
RIV #4842-7132-3657 v2 -2-
ATTACHMENT "E"
(Media Format and Scheduling)
City of Temple City-T ime Allocation
• North-facing and south-facing 14 'x48 ' screens will each be distributing general
advertising of appr oximately si x (6) seconds each slot.
• City shall be granted one (1) out of every eight (8) slots on both the north-facing and
south-facing digital screens.
Custom Templa te Design
• Digital Billboard Owner will initially design five (5) custom templates for any category
pre-defmed by the City (City to provide all artwork and logos).
• The City will have the ability to remotely update the content being broadcasted to each
screen.
Example Categories May Include:
• City Events
• City Announcements
• City Activities
• City Civic
• City Community
Pre-Existing Advertisements
• City may distribute any pre-existing advertisement or promotional image.
• Digital Billboard Owner shall prove the City with creative guidelines and specs.
New Content Creation
• Digital Billboard Owner can create additional advertising or promotional ads for the City
at $150 per ad (City to provide all artwork and logos).
Production Deadlines
• All files or artwork must be submitted at least five (5) business days prior to run dates .
Monthly Scheduling
• Digital Billboard Owner to deliver all content to the digital billboards based on the
monthly scheduling plan.
• Digital Billboard Owner will allow the City to distribute multiple advertising,
promotional or informational spots within the City's allotted time.
RIV 11 4842 -7132-365 7 v2 -3-
ATTACHMENT "F"
(Resolu t ion No . 11-2332 PC approving CUP 11-1777)
RIV 114842-7132-3657 v2 -4-
RESOLUTION NO. 11-2332 PC
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF TEMPLE CITY
APPROVING THE FOLLOWING PROJECT: CUP 11-1777 -A CONDITIONAL USE
PERMIT TO ALLOW THE FOLLOWING IMPROVEMENTS AT PROPERTY
ADDRESSED AS 5402 ROSEMEAD BLVD. AND 9011 OLIVE ST: 1. CONSTRUCTION
OF A 500 SQUARE FOOT ADDIT ION TO AN EXISTING AUTO REPAIR BUILDING; 2.
EXTERIOR REMODEL OF AN EXISTING AUTO REPAIR BUILD ING; 3. EXTERIOR
REMODEL OF AN EXISTING SELF-SERVE CAR WASH BUILDING; 4 .
______ CONSIBUCIIOILOE._AN_ARCHITECIURAL_CANOeY_SE.ANNJNG...II:IE.__D ISTANCE _____ _
BETWEEN THE AUTO REPAIR BUILDING AND THE SELF -SERVE CAR WASH
BUILDING: 5. REPLACEMENT OF A 14' BY 48' OUTDOOR ADVERTISING
STRUCTURE (BILLBOARD) WITH A NEW 14' BY 48' DIG ITAL LED (LIGHT EMITTING
DIODE) OUTDOOR ADVERTISING STRUCTURE (DIGITAL BILLBOARD). (PIERRE
DELORENZO I DE LORENZO & DEMARCO FAMILY TRUSTS) (CUP 11-1777)
The Planning Commission of the City of Temple City does hereby resolve:
SECTION 1. Based upon information presented in a Staff Report dated
September 13, 2011, and based upon a Public Hearing on September 13, 2011 to
consider a Conditional Use Permit, the Planning Commission makes the following
findings:
Conditional Use Permit Findings:
1. That the site for the proposed use is adequate in size, shape, topography and
circumstances in that the site contains 14,677 square feet of land area, wh ich
is adequate for the proposed project which includes a 500 square foot addition
to an existing auto repair use, exterior improvements to an existing auto repair
use and self-serve car wash, and the upgrade and replacement of an existing
bi ll board; and
2. That the site does have sufficient access to streets, adequate in width and
pavement type to carry the quantity and quality of the traffic generated by the
proposed use in that the site is accessed by Rosemead Boulevard and from
Olive Street. Rosemead Boulevard is a "primary road" as identified by the
City's General Plan , which will have the capacity to carry the quantities of the
traffic that will be generated by the proposed uses; and
3. That the proposed use will not have an adverse effect upon the use,
enjoyment or valuation of adjacent or neighboring properties or upon the
public welfare in that the proposed development is consistent with its land
use designation, is consistent with Ordinance No. 11-941 regarding
upgrading existing billboards, and the conditions of approval included for this
project will be more than adequate to address any perceived impacts to the
surround ing neighborhood.
Resolution No. 11-2332 PC
5402 Rosemead Blvd. & 9011 Olive St.
Page 2 of 7
Required Findings Pursuant to Ordinance No. 11-941:
1. The outdoor advertising structure must be modernized and upgraded
to meet the criteria listed in Section 9411.1 of the Temple City
Municipal Code, except that:
a. The maximum height of the outdoor advertising structure measured
___________ from_grade lev_e LoUbe loL upo n__wbicb such_structure is locatecLto the'--------~
highest point of the structure may be up to, but shalt not exceed, 45
feet. ·
Finding: The proposed billboard is 43 feet, 6 inches tall.
b. The outdoor advertising structure may be located within 200 feet of a
residential zone, but only if the existing outdoor advertising structure
is being dismantled and a new structure is being constructed on the
same site and the City determines that the benefit of the new structure
outweighs the impact of its proximity on the residential zone.
Finding: The existing billboard on the property is being
dismantled and a new digital billboard is proposed to be
constructed approximately 120 feet from R-2 zoned property.
The impact of the proposed new digital billboard on the R-2
zoned property is outweighed by the benefit the new billboard
will provide because the new bil!board is more aesthetically
pleasing than the existing billboard and will contribute to the
revitalization of the area surrounding the R-2 property.
2 . The outdoor advertizing structure must be modernized and upgraded
to meet the following requirements in addition to those in Section
9411 .1 .
a. The outdoor advertising structure must remain in the same location or
be dismantled and a new 'structure constructed at another location on
the same lot, provided the City determines the new structure provides
public benefits not provided by the old structure . The outdoor
advertising structure shall not be moved to a different lot.
Finding: The existing billboard is proposed to be dismantled and
a new digital billboard is proposed to be located approximately
20 feet north of where the existing billboard is located. The
proposed digital billboard will provide public benefits not
provided by the existing billboard because it will advertise City
events on a rotating basis and will contribute to the overall
revitalization of the area.
Resolution No. 11-2332 PC
5402 Rosemead Blvd. & 9011 Olive St.
Page 3 of 7
b. The message surface area of the outdoor advertising structure shall
not exceed 700 square feet.
Finding: The proposed billboard screen (each side) is 672 square
feet.
c . The outdoor advertising structure shall be compatible with uses and
__________ _,structures on_the site and in the_surrounding area .. ________________ _
Finding: The proposed billboard features a decorative brushed
aluminum frame which will be architecturally compatible with the
remodeled buildings on the site. The proposed billboard is also
compatible with uses and structures in the surrounding area
because it is located in a heavy commercial area.
d. The outdoor advertising structure must display content d igitally on an
LED screen or by equivalent technology. Any digital outdoor
advertising structure shall display content for at least 6 seconds
before changing screen displays. No flashing digital content is
pennitted.
Finding: The conditions of approval for this project will require
digital content to be displayed for at least 6 seconds and prohibit
flashing content.
e. The outdoor advertising structure shall not create a traffic or safety
problem with regard to on-site access, circulation or visibility.
Finding: The proposed billboard will be located and designed in
such a way to comply with this requirement, in fact it will be
supported by a single arm which will not interfere with
circulation or visibility.
f. The outdoor advertising structure shall not interfere with on-site
parking or landscaping required by City ordinance or permit.
Finding: The proposed billboard will be located and designed in
such a way to comply with this requirement, in fact it will be
supported by a single arm which will not interfere with onsite
parking or landscaping.
g. The existing outdoor advertising structure must be capable of being
safely modernized and upgraded or the existing structure must be
completely removed before construction of the new outdoor
advertising structure may commence. If more than six months passes
between the removal of the existing structure and the commencement
Resolution No. 11-2332 PC
5402 Rosemead Blvd. & 9011 Olive St.
Page 4 of 7
of the construction of the new structure, such lapse shall not be
deemed a discontinuance of the utilization of a nonconforming use for
the purposes of Section 9273(A)(3) of this Code.
Finding: The conditions of approval for the project require the
existing billboard to be completely dismantled before
construction on the new digital billboard may commence.
3. If the applicant for a CUP to modernize an existing outdoor advertising
structure does not own the property on which the outdoor advertising
structure is located, the applicant must submit proof of the
landowner's consent to the proposed modernized outdoor advertising
structure.
Finding: The applicant for this project is also one of the property
owners, and all property owners on title will be required to
submit consent.
4. Any person who obtains a CUP to modernize an existing outdoor
advertising structure pursuant to this section shall be required to enter
into a written agreement with the City providing for the amortization of
the outdoor advertising structure and the provision of advertising
space to the City.
Finding: The applicant intends to sign the amortization
agreement approved by the City Council.
SECTION 2. This project should result in no significant effects upon the
environment, a Negative Declaration has been prepared for this Conditional Use
Permit (CUP 11-1777) and the Planning Commission hereby adopts a Negative
Declaration in accordance with the State CEQA Guidelines. The initial statement as
prepared indicates that there is no potential for adverse impact to the environment
as it relates to all wild animals, birds, plants, fish, amphibians and related ecological
communities, including the habitat upon which the wildlife depends for its continued
viability.
SECTION 3. Based upon the above findings, the Planning Commission
hereby approves Conditional Use Permit 11-1777, subject to the following conditions:
1. The proposed development, including the addition to the auto repair building, exterior
improvements to the auto repair building and self serve car wash, and the installation
of the upgraded outdoor advertising structure (billboard) shall be constructed in
substantial compliance with the submitted plans date stamped March 15, 2011.
Resolution No. 11-2332 PC
5402 Rosemead Blvd. & 9011 Olive St.
Page 5 of 7
2. The applicant and/or property owner shall be required to enter into a written
agreement with the City providing for the amortization of the outdoor advertising
structure and the provision of advertising space to the City.
3. The property shall be consistently maintained and kept free of weeds, trash, debris ,
abandoned vehicles, vacated equipment, etc. to the satisfaction of the Community
Development Department.
4. Detailed Sign Plans shall be submitted prior to issuance of building permits for all
exterior signage. No "canned" signs shall be allowed at the project site. All onsite
signage shall be in compliance with the City's sign ordinance. All signage reviewed
and approved by the Community Development Department shall require
appropriate Building permits and approvals by the Community Development
Department.
5. Any graffiti or acts of vandalism shall be removed or repaired within 24 hours.
6. A detailed landscape and irrigation plan prepared by a licensed Landscape Architect
shall be submitted and approved by the Community Development Director or his
designee prior to the issuance of building permits. Said landscaping shall be
continuously maintained.
7. Street trees and parkway landscaping shall be provided to the satisfaction of the
Community Development Director and Parks and Recreation Director.
8. The conditions of approval contained in this Resolution may be enforced by the
Sheriffs Office as well as by City staff. Any violation of any condition is a
misdemeanor and may be processed directly by criminal complaint. The indemnity
and enforcement provisions of the Conditional Use Permit shall also be enforced
as set forth therein.
9. All proposed mechanical equipment should be screened from public view at all times.
The location of such equipment shall be approved by the Community Development
Department.
10. All activities and functions at the site shall be subject to the City's noise Ordinance.
Any violation of the City's noise Ordinance as contained in Sections 9280 to 9282.1
shall be grounds for revocation of this Conditional Use Permit.
11. Disposal of Construction Waste : No construction activity waste material of any kind,
including plaster, cement, paint, mud, or any other type of debris or liquid shall be
allowed to be disposed of in the street or gutter, storm drain or sewer system. All
debris spills shall be removed daily and the subject site shall use necessary dust
control measures. Failure to comply with this condition will result in charges being filed
with the District Attorney . (TCMC 3400-3411)
Resolution No . 11 -2332 PC
5402 Rosemead Blvd . & 9011 Olive St.
Page 6 of 7
12. This Conditional Use Permit shall expire 24 months from the date of approval if said
approval is not exercised within that time. If the project is not commenced prior to the
expiration date, the applicant may apply in writing for an extension of time at least forty
( 40) days before the expiration date.
13. Any modification to th is application shall require a separate public hearing and a
modification to this Conditional Use Pennit.
14. The building construction plans shall include a blue-line sheet(s) showing each page
of this Resolution including all conditions of approval contained herein.
15 . This Resolution shall not become valid until such time that the applicant and property
owner has signed a copy of the Resolution acknowledging acceptance of the
Conditions of Approval.
16. Any digital outdoor advertising structure shall display content for at least 6 seconds
before changing screen displays. No flashing d igital content is permitted.
17. The existing outdoor advertising structure on the property must be completely
dismantled and removed before construction may commence on a new digital outdoor
advertising structure on the property.
SECTION 4 . The Secretary shall certify to the adoption of this Resolution,
and forward a copy to the City Council.
Chairman
I hereby certify that the foregoing Resolution was adopted by the Planning
Commission of the City of Temple City at a regular meeting held on the 13th of September
2011 , by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN :
Commissioner-Leung, 0' Leary, Seibert
Commissioner-Horton
Commissioner-Cordes
Commissioner-None
Secretary
Resolution No. 11-2332 PC
5402 Rosemead Blvd . & 9011 Olive St.
Page 7 of 7
READ, APPROVED AND CONDITIONS ACCEPTED:
Delorenzo Family Trust
Property Owner
DeMarco Family Trust
Property Owner
Pierre Delorenzo
Applicant
Date
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OFFICIAL BUSINESS
Document exempt from recording
fees pursuant to Cal. Gov. Code§ 6103.
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Temple City
9701 Las Tunas Drive
Temple City, CA 91780
ATTN: Community Development Dept.
ATTACHMENT B
SPACE ABOVE THIS LINE FOR RECORDING USE
FIRST AMENDMENT TO
DIGITAL BILLBOARD ADVERTISING AND
AMORTIZATION AGREEMENT
by and between
the
CITY OF TEMPLE CITY
and
TEMPLE CITY GATEWAY, LLC ASSIGNEE OF
DELORENZO FAMILY TRUST
Dated December 4, 2013
LA #4824-5880-7317 v4
FIRST AMENDMENT TO DIGITAL BILLBOARD ADVERTISING AND
AMORTIZATION AGREEMENT
This First Amendment to Digital Billboard Advertising and Amortization Agreement
("First Amendment"), which is dated for reference as indicated on the cover page, is hereby
entered into by and between the CITY OF TEMPLE CITY, a California charter city ("City"),
and the TEMPLE CITY GATEWAY, LLC ASSIGNEE OF DELORENZO FAMILY TRUST
("Digital Billboard Owner"), as fo llows :
RECITALS
_____ A .__ City_ and Digital Billboard Own~ entered_ill._11:_Digital Billboard_Advertising_an~d __ _
Amortization Agreement on or about October 6, 2011 ("Agreement"). The Agreement
was recorded with the Los Angeles County Recorder 's Office on October 13 , 2011 as
Document Number 20111389480.
B. On January 27, 2012, DeLorenzo Family Trust, Digital Billboard Owner under the
Agreement, assigned all of its Rights , Title and Interest in the Agreement to Temple City
Gateway, LLC as provided in Para graph 6.1 of the Agreement.
C. The Agreement provides that Digital Billboard Owner will provide advertising space to
the City. Digital Billboard Owner and City desire to amend the Agreement to add
additional information regarding the content and formatting of the City's advertising
slots, and procedures for the submission of advertising slots by the City to Digital
Billboard Owner.
D. The City and Digital Billboard Owner also desire to amend the Agreement to
memorialize the City's efforts to reasonably mitigate any visual interference to the
Digital Billboard occasioned by the City's installation and maintenance of certain street
trees , landscaping , and fixtures in the vicinity of the Digital Billboard along Rosemead
Blvd.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the promises made and recited herein, the
parties do hereby enter into this First Amendment which modifies and amends the Agreement as
follows:
1. AMENDMENT. The Agreement is hereby modified and amended as follows :
1.1 Section 1.4. Section 1.4 (Local Business Discount) is amended to read as
follows:
"1.4. Local Business Discount. Digital Billboard Owner agrees to offer up to twenty-
five percent (25%) of the available advertising slots on the Digital Billboards, or up to two (2)
slots, whichever is higher , to businesses located in the City at a fifty percent (50%) discount off
of the Standard Rate Card price for the advertising slots. To qualify for this discount, a business
must actually sell or lease products, or provide services, from a facility located within the City
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boundary and have a valid City business license. Digital Billboard Owner shall within 30 days of
City's request, provide City with a report of all businesses that received the local business
discount for each fiscal year (July 1 through June 30). City agrees that it will not actively
advertise the availability of the local business discount through its advertisements on the Digital
Billboards or through other media. Digital Billboard Owner understands that the Agreement and
this Amendment are public records which must be disclosed to members of the public upon
request, that the City is not prohibited from providing the Agreement and Amendment to any
member of the public or community group that requests them, and that advertisement of the local
business discount by any member of the public or community group shall not be deemed a
violation of this provision by the City."
1.2 Attachment "E". Attachment "E" (Media Format, Scheduling, and Creative
Guidelines & Specifications) to the Agreement is amended to read as shown in
Exhibit "A" to this First Amendment.
1.3 Attachment "B". Attachment "B" (Diagram of Site) is amended to add an
Attachment "B-1" (Street Tree Diagram), which is attached hereto as Exhibit "B."
1.4 Article VII. A new Article VII (Digital Billboard Visibility) is added to the
Agreement to read as follows:
"ARTICLE VII-DIGITAL BILLBOARD VISIBILITY
7.1 Accommodations by City. The City has planted certain trees within the public
right-of-way on Rosemead Boulevard that are may interfere with the visibility of the Digital
Billboard from motorists and pedestrians on Rosemead Blvd. These trees are generally
described as: Tree #1 (approx 280' South of the Property); and Tree #2 (approx 68' North of the
Property), collectively the "Street Trees," and their locations are depicted on Attachment B-1. In
order to reasonably mitigate any visual interference with the
Digital Billboard occasioned by the City's installation of the Street Trees, or other improvements
on Rosemead Blvd, in the vicinity of the Property, the City agrees to take the following
measures:
a. City will maintain the Street Trees at a maximum height of twenty feet
(20'), as measured from the base of the tree to the tallest point of the tree, and to have a
maximum diameter (including branches) of no more than ten feet (10').
b. City will explore moving the existing street light currently located on the
corner of Olive Street and Rosemead Blvd east to Olive Street subject to meeting
minimum traffic standards per the City's lighting engineer.
c. City will not plant or install any additional tree, landscaping, or fixture in
the public right-of-way along Rosemead Boulevard, from Sereno Drive to Broadway
Avenue that will materially impair the visibility ofthe Digital Billboard.
7.2 Enforcement. Digital Billboard Owner may enforce the provisions of this Article
VII as provided in Section 5.1 (Default) of this Agreement. If City fails to cure the Default or
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commence to cure the Default within the time provided in Section 5.1 , City shall not be liable to
Digital Billboard ·Owner for any damages incurred prior to the date Digital Billboard Owner
delivered the required Notice of Default to City ."
2. GENERAL PROVISIONS.
2.1 Remainder Unchanged. Except as specifically modified and amended in this
First Amendment, the Agreement remains in full force and effect and binding upon the parties.
2.2 Integration. This First Amendment consists of pages 1 through 5 and Exhibits A
and B inclusive, which constitute the entire understanding and agreement of the parties and
supersedes all negotiations or previous agreements between the parties with respect to all or any
part of the transaction discussed in this First Amendment.
2 .3 Effective Date. This First Amendment shall not become effective until the date it
has been formally approved by the City Council and executed by the appropriate authorities of
the City and Digital Billboard Owner.
2.4 Applicable Law. The laws of the State of California shall govern the
interpretation and enforcement of this First Amendment.
2.5 References. All references to the Agreement include all their respective terms
and provisions. All defined terms utilized in this First Amendment have the same meaning as
provided in the Agreement, unless expressly stated to the contrary in this First Amendment.
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[signatures on following page]
LA #4824-5880-7317 v4
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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to
the Agreement on the date and year first written above.
CITY:
THE CITY OF TEMPLE CITY
By :-:::----:::::--.-.-;="'=7"----::--=----------- - - ------------Jose Pulido, City Manager
ATTEST:
Peggy Kuo, City Clerk
APPROVED AS TO FORM
Eric S. Vail, City Attorney
DIGITAL BILLBOARD OWNER:
TEMPLE CITY GATEWAY, LLC
[notary acknowledgement required]
By: ---------------------------
Name: ----------------------
Title: -----------------------
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF
On , before me, , personally appeared , proved to me on
the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certifY under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is
true and correct.
WITNESS my hand and official seal.
Signature: ________________ _
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could
prevent fraudulent reattachment of this form
CAPACITY CLAIMED BY SIGNER
0 INDIVIDUAL
0 CORPORATE OFFICER
TITLE(S)
PARTNER(S) D
D
ATTORNEY-IN-FACT
LIMITED
GENERAL
TRUSTEE(S)
GUARDIAN/CONSERVATOR
D
D
D
D
D OTHER, ___________________ ___
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTJTY(IES))
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DESCRIPTION OF ATTACHED DOCUMENT
TITLE OR TYPE OF DOCUMENT
NUMBER OF PAGES
DATE OF DOCUMENT
SIGNER(S) OTHER THAN NAMED ABOVE
EXHIBIT "A"
ATTACHMENT "E"
(Media Format, Scheduling, and Creative Guidelines & Specifications)
A. City of Temple City-Time Allocation
1. North-Facing and South-Facing 14'x48 ' Digital Billboards will each be distributing
general advertising of approximately six ( 6) seconds each slot.
_______ 2_. _C-'-ity shall be granted one (l) out of every eight® slots on both the North Facingj)jgital
Billboard and South Facing Digital Billboard.
B. Custom Template Design
1. Digital Billboard Owner will initially design five (5) custom templates for any category
pre-defined by the City (City to provide all artwork and logos) at no cost to City .
• Example Categories May Include:
• City Events
• City Announcements
• City Activities
• City Civic
• City Community
2. City is not required to use the custom design templates provided by Digital Billboard
Owner.
3 . Digital Billboard Owner will, during the term of the Agreement, create additional
advertising or promotional ads for the City at $150 per ad (City to provide all artwork and
logos). Beginning in July, 2015, and each year thereafter, Digital Billboard Owner may
increase the cost per ad by the lesser of; (i) the increase in the Consumer Price Index (All
Consumers for the Los Angeles, Urban Consumers, not seasonally adjusted, for the Los
Angeles-Riverside-Orange-County area published by the U.S Department of Labor,
Bureau of Labor Statistics) over the prior fiscal year; or (ii) a fixed rate of2%.
C. Pre-Existing Advertisements
1. City may distribute any pre-existing advertisement or promotional image.
D. Production Deadlines
1. All files including City's design, artwork , and other content ("Creative") must be
submitted as provided in the Creative Guidelines & Specifications below.
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E. Monthly Scheduling
1. Digital Billboard Owner shall program all content to the digital billboards based on the
monthly scheduling plan.
2. Digital Billboard Owner will allow the City to distribute multiple advertising,
promotional or informational spots within the City's allotted time.
F. Creative Guidelines & Specifications
1. Notwithstanding these Creative Guidelines & Specifications, City shall be permitted to
advertise its Creative on the Digital Billboards using the alternative City's User Access,
as provided in the section G. below.
2. Digital files containing City's Creative must be supplied to Digital Billboard Owner to
filesra),axisdigitalmedia.com within Five (5) business days prior to the First (1 '') day of
each month to allow the Digital Billboard Owner to approve creative and post.
3. Each advertisement will be displayed according to the designated monthly distribution
schedule. Once the designated monthly distribution schedule is programmed, City may
update any given spot throughout the month by emailing files@axisdigitalmedia.com
anytime Monday through Friday between 9:00am and 5:00pm PST provided that any
such update shall be delivered at least (3) days prior to its posting.
4. All Creative submitted by City shall meet the below specifications ("File Type"):
o Size: 200 pixels high x 704 pixels wide
o Formats: JPEG, PNG, BMP
o Color Mode: RGB
o Resolution: 72 DPI
5. Digital Billboard Owner may, upon 30 days prior written notice make reasonable non-
material changes to the Creative Guidelines & Specifications. Digital Billboard Owner
shall not make any material change to the Creative Guidelines & Specifications without
first giving City thirty (30) days advance written notice specifYing all of the proposed
changes and the reasons for such changes, and then obtaining City's written agreement to
the changes, which the City will not unreasonably withhold. Notwithstanding the
foregoing, Digital Billboard Owner shall, upon thirty (30) days prior written notice to
City, have the right to change its file type specifications and software applications, or
creative distribution methods, without City's consent.
6. City warrants that all Creative provided to Digital Billboard Owner shall not infringe
upon any trademark or copyright, state or federal and agrees to defend, indemnifY and
hold Digital Billboard Owner free and harmless from any and all loss, liability, and
claims, including reasonable attorney's fees, arising therefrom.
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7. City shall not display Creative which advocates or expresses a political view, a political
endorsement, religious view, or expresses a position contrary to the United States
Constitution. Political and religious views, include but are not limited to abortion, same
sex marriage, and gun control). Digital Billboard Owner agrees that reference to City
sponsored events and programs, and City public service announcements related to
awareness of public health, safety and welfare concerns (including but not limited to
general voting and polling place information, literacy programs, anti-smoking, anti-
tobacco, and anti-underage drinking laws, ordinances, and programs, teen pregnancy
awareness programs, and similar matters) are not prohibited or restricted under this
Agreement or the Creative Guidelines and Specifications in this Attachment "E".
8. In general, all Creative provided by City shall consist of at least Seventy Five (75%)
Percent English Language which includes Modern Latin Letters "A, B, C, D, E, F, G, H,
I, J, K, L, M, N, 0, P, Q, R, S, T, U, V, W, X, Y, Z" and, if the content is numeric in
nature, at least Seventy Five (75%) Percent Hindu Arabic Numbers "0, 1, 2, 3, 4, 5, 6, 7,
8, 9". However, Digital Billboard Owner recognizes that City's residents and business
community includes a large percentage of non-English speaking or non-English native
speakers, that City is permitted, from time to time, but no more than twenty (20%)
percent of City's entire allocated time in any given 30 day period, display Creative that is
1 00% non-English language, non Modern Latin Letters, including but not limited to
Mandarin, Cantonese, Vietnamese, Thai, Tagalong, Spanish, and similar languages.
9. City shall not engage in commercial advertising nor display of any Creative which would
inherently compete with Digital Billboard Owner for advertising revenues. City shall not
display any Creative claiming or depicting the City, its employees, agents, contractors or
vendors to be the operator of the Digital Billboards.
10. City shall not sublet, resell, transfer, donate or assign any of City's advertising slots.
11. City shall not incorporate RSS or live feeds in any of City's Creative.
12. Digital Billboard Owner reserves the right to reject or withdraw any Creative where it
reasonably determines that the Creative is inconsistent with the terms of this Agreement,
the Creative Guidelines & Specifications set forth in this Attachment "E", or that the
display of the Creative would cause significant injury to, or umeasonable interference
with, Digital Billboard Owner's business, or would compromise the integrity of its
network.
G. City's User Access
1. Digital Billboard Owner shall allow City restricted user access to the Digital Billboard
Owner's distribution software (herein referred to as "Controller") solely for the purpose of
scheduling and updating of the City's creative. Digital Billboard Owner shall create a
separate User Account for the City for that limited purpose.
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2. City shall designate a specific City person employed or hired by the City (herein referenced
as a "Single User") to operate the Controller. City shall provide Digital Billboard Owner
with the name and contact information of the designated Single User. The Single User shall
be properly trained prior to any access and operations of the Controller. City shall in no
event allow any 3'd Party other than the Single User access or operations of the Controller.
City shall have the right to change the identity of the Single User and shall notifY Digital
Billboard Owner of such change, subject to the above provisions. Digital Billboard Owner
reserves the right to reject or remove any creative, either before or after posting.
3. Digital Billboard Owner shall not provide any such Controller access to the City until such
time the Single User has proven its ability to properly operate the Controller, based on the
successful completion of a pre-operational pilot test.
4. Digital Billboard Owner may, (i) upon City's violation of the terms of this Section G, revoke
City's user access, after Billboard Owner affords City notice and opportunity cure pursuant
to section 5.1 of the Agreement, and City fails to timely cure; (ii) in the event Digital
Billboard Owner's Controller is temporarily inaccessible or disabled, suspend City's User
access until the problem is remedied, or (iii) in the event a change in Billboard Owner's
software applications, network, or other system hardware renders Billboard Owner incapable
of providing City with User access, terminate City User access. Under any of these
circumstances City will retain access in accordance with the Creative Guidelines & Standards
provided in Section F above. Billboard Owner shall provide City of prompt notice of
circumstance (ii) above and shall provide City with thirty (30) days advance written notice of
circumstance (iii) above.
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EXHIBIT "B"
ATTACHMENT "B-1"
(Street Tree Diagram)
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